United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL Case No: UI-2024-005282

IMMIGRATION AND ASYLUM CHAMBER

First-tier Tribunal No: PA/57929/2023

LP/04387/2024

 

THE IMMIGRATION ACTS

	Decision & Reasons Issued:
	14 th February 2025

 

Before

 

Deputy upper tribunal JUDGE Kelly

 

Between

 

HY

(ANONYMITY ordered)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr T Muman, Counsel instructed by Logan Kingsley Limited

For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

 

Heard at Bradford on the 3 ^rd February 2025

 

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1.              The appellant is a citizen of Iraq. The respondent refused his protection claim on the 2 ^nd October 2023 and his appeal against that refusal was dismissed by First-tier Tribunal Judge Sills on the 27 ^th September 2024. The appellant was granted permission to appeal against Judge Sill's decision and hence the matter came before me.

Background

2.              The essence of the appellant's claim before the First-tier Tribunal can be summarized as follows.

3.              Whilst he was studying at university, the appellant had a part-time job as a courier, working for 'Mam Ghadir' and his close friend, 'Muslim Amir'. His work for Mr Amir involved delivering packages (the contents of which were unknown to him) to individuals who appeared to be wealthy and drove cars with tinted windows. Following the fourth delivery, the appellant received a telephone call from Mam Ghadir, who told him that he (the appellant) had been spotted making the latest delivery on CCTV and that the KDP security forces were consequently looking to arrest him. When the appellant asked Mam Ghadir why he was wanted for simply delivering a package, he was told that it had contained papers for the following day's Year 12 examinations. Fearing that Mr Amir would use his political connections to the KDP to make him the scapegoat for disclosing confidential examination papers, the appellant initially sought shelter with the 'Ashti Human Rights Organization', before fleeing to the UK and seeking international protection.

Findings of the First-tier Tribunal

4.              In summary, and insofar as it is material to the grounds of appeal, the First-tier Tribunal Judge found as follows.

5.              The appellant's credibility was undermined for reasons that included the following discrepancies between his "oral evidence" at the hearing on the one hand, and a witness statement he made on the 1 ^st February 2024 on the other-

(i)             At the hearing the appellant stated that he had sheltered at the premises of the Ashti Human Right Organisation for 8 days whereas in his statement he said that it was for 14 days, as did the author of a supporting letter from 'Ashti' [22].

 

(ii)          At the hearing the appellant stated that he had taken his CISID (identity card) with him when he left Iraq and that his agent had thrown it away during transit to the UK, whereas in his statement he had said that he had been unable to take it with him when he left Iraq [23]

 

(iii)        At the hearing the appellant stated that, whilst he had spoken to his family in Iraq since his arrival in the UK, he was no longer able to do so because his mobile telephone was now damaged and he had lost the numbers, whereas in his witness statement he had said that he had not spoken to his family since leaving Iraq because the agent had made him throw away his telephone during transit [24].

6.              The 'arrest warrant' that the appellant produced in support of his claim is dated "3 August 2024" [it is in fact dated 3 ^rd August 2021], which was difficult to reconcile with (a) the dates he gave for delivering the package containing the examination papers, and (b) his account of the subsequent police raid at his home. This too undermined the appellant's credibility [17].

7.              Concerning the appellant's private life claim under Article 8 of the European Convention of Human Rights and Fundamental Freedoms, the judge found that (i) the appellant would not face any significant difficulties of integration on return to Iraq given the findings made in relation to his protection claim, and (ii) medical treatment would be available for his various ailments in Iraq. The judge also noted that (i) immigration controls are in the public interest, (ii) the appellant was unable to meet the requirements of the immigration rules, (iii) the appellant had not established that he spoke English or that he was financially independent, and (iv) any private life in the UK had been established whilst his immigration status was precarious. In conclusion, the judge found that there were no compelling circumstances such as to render respondent's decision disproportionate and unjustifiably harsh in furtherance of the public interest [36, 37].

The grounds of appeal

8.              The grounds of appeal that the appellant has been granted permission to argue (permission to argue that judge made a flawed assessment of the appellant's sur place activities having been refused) may conveniently be summarized as follows -

(1)           In drawing adverse credibility conclusions from the inconsistencies listed at paragraphs 5(i) to (iii) (above), the judge failed adequately to "consider and engage with the contents of the appellant's amended statement, dated the 10 ^th September 2024, which was adopted by the appellant in his evidence", and instead erroneously relied "on an earlier version of his statement (which he did not adopt)" [a reference to his statement dated 1 ^st February 2024].

 

(2)           The judge erroneously stated that the letter from 'Ashti' referred to having sheltered the appellant for 14 days, whereas it does not in fact do so.

 

(3)           In expressing concern that 'Ashti' should involve itself in sheltering a fugitive from justice, the judge failed to note that prosecution is in certain circumstances capable of amounting to persecution.

 

(4)           The judge failed to make adequate (or any) findings in respect of the arrest warrant that supported the appellant's case.

 

(5)           The above errors, "together or separately, impugn the judge's assessment of Article 3 EHCR and/or Article 8 ECHR. [For the avoidance of doubt, Mr Mumman made clear that he did not pursue this ground insofar as it related to the judge's assessment of the appellant's claim under Article 3 of EHCR].

 

(6)           The judge's Article 8 assessment is in any event flawed given that it only has regard only to those factors affecting the public interest and ignores those affecting the appellant's right to respect for private life.

Analysis

9.              For convenience, I shall refer to the grounds as I have numbered them in the previous paragraph.

10.          It is worth considering in some detail the history of how the appellant's witness statements of the 1 ^st February 2024 and 10 ^th September 2024 (respectively) came to be before the First-tier Tribunal. In doing so, I have had access to the Core Case Data (CCD, also known as 'MyHMCTS') the relevant parts of which I read out to the representatives at the outset of the hearing.

11.          The appellant's representatives uploaded their original hearing bundle of documents on the 4 ^th September 2024. This bundle contained the statement of the 1 ^st February 2024 upon which it is argued the judge erroneously relied in support of his finding that the appellant had given an inconsistent account of certain aspects of his reasons for leaving Iraq. Somewhat ironically, given the nature of this appeal, these are the only documents that the appellant included within the bundle provided for the Upper Tribunal hearing. It therefore includes the statement of the 1 ^st February 2024, but not that of the 4 ^th September 2024. The former runs to seven pages and contains 39 paragraphs, and includes the appellant's detailed account of events in Iraq under the heading 'Reasons I escaped Iraq'.

12.          On the 9 ^th September 2024, the appellant's made the following application -

Dear Sirs,

Sincere apologies for this delay, our client has reverted and requested to amend his witness statement. We have advised our client accordingly however, the client wishes to amend his witness statement. We kindly request permission to amend the witness statement and submit a new bundle in readiness for the hearing. We sincerely apologise, however, the appellant requests to kindly change a few details in his statement. For fairness, and completeness, and for not wasting time and costs, we hope our permission can be accepted and the appellant can have the opportunity to submit a new bundle with his amended statement. Please note the statement will not be entirely changed however only minor amendments.

In granting the application, a Legal Officer made it plain that (a) it would be a matter for the judge to decide at the hearing whether to admit what she characterised as the 'amended' statement, and (b) given that the hearing bundle had already been generated, it was now too late to include the new statement within it.

13.          On the following day, the representatives uploaded a 'new' hearing bundle. This contained the same documents as the original, save that the statement of the 4 ^th September 2024 was substituted for the earlier statement of the 1 ^st February 2024. The upload included the following covering message -

Dear Sirs,

Sincere apologies for the inconvenience, the appellant requested to amend a few details in his witness statement which were an admin error. Sincere apologies for the delay, to avoid wasting time, costs and allow the appellant fairness and completeness with his appeal, we kindly request for the attached statement to be considered in replacement of the previously uploaded statement which is also in the appellant's bundle.

Best wishes

14.          I have not been provided with evidence from counsel who appeared at the hearing in the First-tier Tribunal. Mr Muman told me that he had been unable to contact him despite using his best endeavours to do so. I have accordingly had to make do with a statement from Mr Sultan Saklican (a trainee solicitor at the firm representing the appellant). It is dated the 2 ^nd February 2025 and was uploaded to the CE File on the day of the hearing. I set out its contents in full -

1.               I have conduct of this casefile under the supervision of my principal, Mr Ravinder Singh Merhas. I confirm that this witness statement has been uploaded with the approval of my principal. I confirm that I was also the caseworker of this casefile at the First-tier Tribunal.

2.               This witness statement has been prepared to clarify relevant events at the First-tier Tribunal hearing. I did not attend the First-tier Tribunal hearing but confirm that I have had several telephone discussions with F-tT counsel.

 

3.               I have been asked to confirm in evidence why it was necessary to upload to the Ft-T portal a revised witness statement from the Appellant dated 10 September 2024. I will refer to this witness statement as 'the Second Statement'. The Appellant had earlier submitted a witness statement dated 1 February 2024 ('the First Statement').

 

4.               I confirm that during preparations in the lead up to the hearing the client identified a number of errors to the First Statement, including a mistake at paragraph 11. He pointed out that our office interpreter must have made a mistake in interpretation because, for example by reference to paragraph 11 he was adamant that he did not refer to the stated period as "fourteen days". He pointed out to me that in his interview he had given a correct account which was eight days and he could not understand why this was mistaken in the First Statement.

 

5.               I asked our office interpreter if this was a possibility and we could not rule out an administrative or interpretation error in the preparation of the Appellant's First Statement, which was overlooked when it was executed. In busy practice, it is not unusual for such mistakes to feature and to be corrected in the immediate run-up to the hearing when there is a greater focus on court-preparation.

 

6.               This was after the Stitched Bundle had been prepared and so the only option was to correct the errors in a further draft and to upload the amended version of the witness statement as a Second Statement. I confirm this is what I did. My instructions to F-tT counsel was to disregard the First Statement and to proceed on the basis of the Second Statement only, which was the only one endorsed by the client as his evidence to the tribunal.

7.               My understanding from my discussions with F-tT counsel both after the hearing and following receipt of the F-tT determination is that he made it clear to the Ft-T Judge that the client disavowed the First Statement in favour of the Second Statement, and as a result the Appellant adopted the Second Statement only as his evidence-in-chief. I understood it was on the basis of the Second Statement that the Appellant was cross-examined.

8.              I hope the above explanation assists the Upper Tribunal on Ground 1.

15.          I now consider the merits of the first ground within the context of the background as set out above.

16.          The first thing to note is that whilst various people who have been involved in this case (including the judge) have referred to the statement of the 10 ^th September 2024 as 'amending' that of the 1 ^st February 2024, the later statement does not in fact make any reference to the earlier one. It instead merely states that it (the statement of the 10 ^th September) is, "to be considered as my statement". Thereafter, it is couched in identical terms to the earlier statement, save that (i) it changes the period during which the appellant claimed to have sheltered at 'Ashti' from 14 to 8 days, (ii) it changes the appellant's account from having left his CSID in Iraq to that of it having been thrown away by the agent whilst in transit to the UK, and (iii) it omits altogether the claim, made in the earlier statement, to the effect that he had not spoken to his family since leaving Iraq and had lost his mobile telephone whilst in transit to the UK. Given that he fails so much as to acknowledge the existence of the earlier statement, wherein he had also signed a 'statement of truth', if follows that the appellant does not make the slightest effort to explain the differences between the two. Moreover, excepting the change concerning the period during which he was sheltered by 'Ashti' (considered below), it remains the case that the appellant has not sought to explain any reason there may have been for the differences between the two.

17.          If I were to accept the premise that underlies the first ground of appeal (that the judge should simply have ignored the contents of the first signed statement) then it seems to me that a litigant would be able to avoid the adverse consequences that may otherwise flow from changing their evidence by simply signing a fresh witness statement in which the fact-finding tribunal is required entirely to disregard the earlier signed statement. I cannot of course say that such was the intention of the appellant and/or his representative when adopting this procedure in the present case. I do however strongly disagree with Mr Saklican's claim that the only option open to him in the circumstances that he describes was, "to correct the errors in a further draft and to upload the amended version of the witness statement as a Second Statement". I reject that claim because the earlier statement was not (as Mr Saklican implies) a mere draft that the appellant had corrected prior to him signing it. Rather, it was a statement that significantly changed the account that he had given in an earlier statement, which he had also signed as being true and accurate to the best of his knowledge and belief. It follows from this that the proper approach would have been for the appellant to have made a further statement, wherein he acknowledged the existence of the claimed 'errors' of his earlier statement (identified by reference to its specific paragraph numbers), and to have provided any such explanation as he may have had for how those errors had come about. For the appellant simply to provide a fresh statement, which did not even acknowledge its inconsistencies with his previously signed statement, let alone explain them, was wholly inappropriate in my view.

18.          I moreover do not accept the claim made in the grounds (and elaborated upon by Mr Mussan) that the judge failed adequately "to engage" with the contents of the second statement. Not only did the judge expressly refer it (albeit in general terms) at paragraph 5 of his decision, but I am also satisfied that, contrary to Mr Muman's submission, the judge was cross-referring to its relevant details when speaking of the appellant's "oral evidence". I say this because the appellant had on any view accepted his counsel's invitation to adopt that statement when giving his oral evidence. Indeed, it is the very premise of the first ground of appeal that the judge was required to accept the appellant's second witness statement as a constituent part of his oral evidence at the hearing.

19.          Mr Mussan also sought to argue that the first ground (as pleaded) was wide enough to encompass a complaint of 'procedural unfairness' in that the judge drew adverse conclusions from the inconsistencies between the appellant's first and second statements without affording the appellant an opportunity to address them in cross-examination. I disagree. I am satisfied that I have accurately summarised (and quoted from) the first ground of appeal at paragraph 8(1), above, and that it was upon this basis that the appellant was granted permission to appeal. It follows that the claim of procedural unfairness was being raised for the first time at this hearing. I am not in any event persuaded that the judge's approach to his credibility findings involved procedural unfairness given what I have said at paragraphs 16 and 17 (above). In short, by adopting his second statement in oral evidence at the hearing, the appellant was thereby making a conscious decision to change his earlier account without providing the Tribunal with an explanation for doing so. I do not see that there was anything unfair in expecting him to bear the consequences of making that decision.

20.          I therefore reject the first ground insofar as it is rests upon what I find to be the appellant's continued failure to provide an explanation for why he changed his account in certain material particulars from that which he gave in his first signed statement.

21.          The judge's specific finding concerning the supposedly inconsistent account that the appellant gave regarding the period during which he was sheltered by Ashti is, however, problematic at several levels. The first and most obvious difficulty with the judge's reasoning is that the supporting letter from 'Ashti' does not say, as the judge found, that they had sheltered the appellant for fourteen days (ground 2). It in fact states that, "given the immediate danger to his life, our organization provided temporary protection to Mr Hilal for eight days" [emphasis added]. Secondly, and perhaps less obviously, the judge appears not to have noticed that the appellant had also said that he was sheltered by Ashti for eight days when questioned in his asylum interview. Both these things were of course entirely consistent with the evidence that the appellant had given about the matter at the hearing. They also mean that the appellant's belated explanation for why it is recorded in his statement of the 1 ^st February 2024 as having been for 14 days (interpreter error) is at least plausible. The judge cannot of course be criticised for failing to have regard to an explanation that was not provided to him. Nevertheless, the cumulative effect of these matters raises serios doubts about the safety of this specific adverse credibility finding. It also raises doubts about one of the bases upon which the judge seems to have attached reduced weight to "the Ashti letter" in respect of whose reliability he expressed "significant concerns" [22]. Given what I find to be the legitimate criticisms made of this specific adverse credibility finding, it would not serve any useful purpose to delve into the legal niceties surrounding the questioned legitimacy of the judge's concern that Ashti were also effectively sheltering a fugitive from justice [ground 3, referring to paragraph 21 of the decision].

22.          Turning to the judge's assessment of the 'arrest warrant' (ground 4), the general approach he adopted in the concluding sentence of paragraph 17 is beyond reproach: "I consider the reliability of the arrest warrant in the round". However, the reasoning leading up to that statement, wherein the judge appears to be provide specific and discrete reasons for attaching reduced weight to the document, are difficult to follow and seem to be based upon speculation about the "likely" working hours and efficiency of the local police in processing applications for arrest warrants in the appellant's hometown in Iraq.

23.          Before turning to consider the grounds concerning the judge's assessment of the appellant's private life claim (grounds 5 and 6) I have stood back and considered whether the errors of law that I have identified in the judge's credibility assessment (above) justify taking the radical step of exercising my discretion to set it aside. In doing so, I have borne in mind that it is necessary to exercise restraint before interfering with a fully reasoned decision of the First-tier Tribunal. I have also borne in mind that the judge provided other reasons for his adverse credibility findings beyond those that are criticised in the grounds, and which have thus been the subject of detailed scrutiny in this appeal. I have nevertheless concluded that it is impossible to isolate the errors that I have identified from the totality of the judge's reasoning, and thus to preserve some of his findings whilst setting aside others. I shall consider the consequences of this conclusion at the end of this decision.

24.          It is clear from paragraph 36 of his decision, that the judge was heavily influenced in his assessment of the appellant's private life claim by the findings that he had made regarding the protection claim, thereby leading to his conclusion that the appellant would not face any significant obstacles to reintegration upon returning to Iraq. Given that I have found that the latter findings cannot stand, it follows that the judge's assessment of the appellant's private life claim must also be set aside (ground 5). It is accordingly unnecessary to consider ground 6 (a claim that the judge failed to take account of relevant factors in the appellant's favour) save to say that the judge was plainly wrong in suggesting that there was no evidence of the appellant's facility in the English language given the letter from Kirklees College that was before him.

25.          For the reasons I explained at paragraph 23 (above), I have reluctantly concluded that I must set aside the decision of the First-tier Tribunal and remit the appeal for a complete rehearing. This will of course give the appellant a further opportunity to address the inconsistencies in his account that arise for his disavowed statement of the 1 ^st February 2024. It will be a matter for the First-tier Tribunal judge to decide the weight they attach to any such belated explanations within the context of totality of the evidence.

Notice of Decision

1.       The appeal is allowed, and the decision of the First-tier Tribunal is set aside with none of its original findings being preserved.

2.       The appeal is remitted for a complete rehearing before a judge of the First-tier Tribunal other than Judge Sills.

 

 

David Kelly Date: 6 ^th February 2025

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber